Initial Thoughts on the Memos
I’ve had time to give the Bybee memo a good read, and I’ve gotten pretty far into the first Bradbury memo. First, let me say that I think my position on the techniques stated therein has been made pretty clear over the last several years I’ve been blogging. My moral outrage is undiminished.
One thing that is clear about the Bybee memo is that it is not a particularly legalistic memo – it should be quite accessible to the layperson. However, there are some things he ignores and glosses over that undermine his arguments pretty severely. The big thing that immediately jumped out at me – and, apparently Dale Carpenter at Volokh – was the explicit and obviously inaccurate assumption that SERE training provides a valuable metric for assessing the effects of these acts on an actual detainee. Another thing that jumped out was the way in which Bybee simply dismisses the notion that “muscle fatigue” could constitute “severe pain” – logic dictates that over a long enough period of time, the pain from muscle fatigue could indeed become unacceptably “severe.” Similarly, he uncritically accepts the idea that sleep deprivation and close confinement were not intended “to disrupt profoundly the senses or the personality.”
I think it’s really difficult to read that memo in April 2009 and conclude that its authorizations are well-reasoned or are accurate depictions of the law of torture. I also think that it would have been really difficult to write that memo in July/August of 2002, knowing that its findings would be applied solely to the single most significant terrorist then in custody, and come to the correct legal conclusion.
Much like Carpenter, my initial thought about the memo was that the essential part of Bybee’s analysis was implied in this paragraph:
The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, [CIA] intelligence indicates that there is currently a level of “chatter” equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you describe as an “increased pressure phase.”
In the comments to E.D.’s aggregation of reactions to the memos, I expressed my opinion that the Office of Legal Counsel isn’t supposed to act like an advocate for the Executive Branch, providing a legal justification for a preordained action, but is instead supposed to act more like a compliance attorney providing guidance on what the law is. But in that situation, knowing those facts, working in a city that at the time often felt like it was under siege, how many of us would truly have been able to remain the staid compliance attorney and avoid the temptation to become an advocate? I think that’s what happened here – Bybee accepted without question the facts provided him by his “client” the CIA, and he prepared a memo in which he adopted the role of an advocate for that client.
This doesn’t make the Bybee memo right, legally or morally. It just makes it human.
As for the Bradbury memos – they’re a much different animal, and less accessible to the layperson, I think. One thing I am finding quite striking is the heavy use of footnotes and caveats, not to mention double and sometimes triple negatives. They read as if the author was quite uncomfortable with the advice he was giving. But they are also chillingly detailed in their advice, in a way that is unusual for a legal memo. There is a clear sense in these memos that the author is aware that the acts he is approving have dubious moral and legal support. The amount of specific detail involved would ordinarily suggest that there is a very clear line between what is and is not illegal – when there are clear lines, it’s pretty easy to say “X is legal, but X+1 is not.” Except that the memos go out of their way to argue that there is no bright line. It’s hard for me to avoid the conclusion that these memos thus did in fact draw a bright line even as they claimed not to. That line, it would seem, was drawn such that anything that would otherwise have been in a “gray area” was defined as “not torture.” Thus, for something to be “not torture,” all that was necessary was to come up with a superficially plausible-sounding argument that it fit within the “gray area.”